Wednesday, January 31, 2018
Earlier this month, the Sixth Circuit issued its decision in George v. Hargett. The case involves whether state officials who are sued for constitutional violations in federal court can file a new lawsuit in state court—naming the federal-court plaintiffs as state-court defendants—and then invoke issue preclusion in the federal court action. That’s what the Tennessee officials did in George, and the Sixth Circuit panel found that the state court’s ruling must be given issue-preclusive effect in federal court. The panel even called the officials’ move “an efficient and fruitful substitute” for abstention or certification—both of which the federal district court had explicitly rejected. A petition for rehearing en banc has been filed, and the Sixth Circuit has ordered the officials to respond by Thursday, February 9.
In the initial round of Sixth Circuit briefing, Suzanna Sherry authored a law-professor amicus brief arguing against giving the state-court judgment preclusive effect. (In the interest of full disclosure, I was one of the signatories to that amicus brief.) Here’s Suzanna’s summary of the George case and the panel’s recent ruling:
Eight private plaintiffs filed a federal-court lawsuit against state officials alleging various constitutional violations, some of which were intertwined with questions about the meaning of a state constitutional provision.
When the district court denied motions to dismiss, abstain under Pullman, or certify, the state officials didn’t seek interlocutory review. Instead they filed suit against the eight private plaintiffs in state court seeking a declaratory judgment that their actions were lawful under the state constitution. After denying any discovery, the state court quickly issued summary judgment for the state officials, one day before the federal court issued its judgment for the plaintiffs.
The state-court judgment wasn’t appealed, and became final before the Sixth Circuit ruled on appeal. The Sixth Circuit gave the state-court judgment issue-preclusive effect, and thus held that the state constitutional provision had to be interpreted the way the state court had interpreted it rather than the way the federal court had. (Remember, this is a just a state trial court: Its opinion wouldn’t be binding under the Erie doctrine.)
What this decision seems to do is to invite any government official sued in federal court to answer the federal complaint with a state lawsuit, in hopes of stymying the pending federal suit and intimidating civil-rights plaintiffs. It rewrites § 1983 law to allow state officials to essentially require exhaustion of state remedies. It undermines the role of the federal courts as guarantors of constitutional rights.
Here’s the opinion of the Sixth Circuit panel:
And here’s the plaintiffs’ petition for rehearing en banc: